FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit

                       UNITED STATES COURT OF APPEALS                        May 13, 2009

                                  TENTH CIRCUIT                          Elisabeth A. Shumaker
                             __________________________                      Clerk of Court


 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,

 v.                                                           No. 08-3312
                                                                (D. Kan.)
 KANEAIS STANFORD,                                 (D.Ct. No. 6:03-CR-10064-JTM-1)

           Defendant - Appellant.
                          ____________________________

                               ORDER AND JUDGMENT *


Before HARTZ, McKAY, and O’BRIEN, Circuit Judges.



       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1. The case is therefore

ordered submitted without oral argument.

       Kaneais Stanford was sentenced to two years imprisonment after violating

two conditions of his supervised release; his second revocation. He contends the


       *
         This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
court erred in consulting the Wichita Police Department’s gang affiliation list in

determining he associated with gang members and in considering that association

in imposing sentence. We affirm.

                                I. BACKGROUND

      Some time ago Stanford pled guilty to being a felon in possession of a

firearm and was sentenced to 37 months imprisonment followed by 24 months

supervised release. After serving his term of incarceration he started supervised

release. One of the standard conditions of his supervision prohibited him from

“purchas[ing], possess[ing], us[ing], distribut[ing], or administer[ing] any

controlled substances . . . except as prescribed by a physician.” (R. Supp. Vol. I

at 11.) A special condition of his supervision prohibited him from “be[ing] a

member of any street gang, participat[ing] in any gang-related activities, or

associat[ing] with any gang member during the term of supervision.” (Id. at 12.)

       Stanford had previously violated a different condition of his supervision

(curfew) and, as a consequence, the terms of his release were modified to require

him to “reside at a residential re-entry center program . . . for up to 120 days, at

the direction of the U.S. Probation Officer.” (Id. at 15.) On February 29, 2008,

Stanford was placed in a halfway house.

      On April 3, 2008, the United States Probation Office prepared an Amended

Violation Report alleging Stanford violated the conditions of his supervised

release by: (1) failing to reside at the halfway house (he left the halfway house on

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March 27, 2008, without permission and without signing out, and his location was

unknown as of April 3, 2008); and (2) drug use, as evidenced by a March 19,

2008 urinalysis which tested positive for Phencyclidine (PCP). The maximum

term of imprisonment permitted upon revocation of his supervised release was 24

months. Considering his criminal history category of IV and a violation grade C,

the recommended term was 6 to 12 months. See USSG §7B1.4(a). When

Stanford was arrested on September 16, 2008, he was with two individuals listed

on the Wichita Police Department’s gang affiliation list.

      On October 27, 2008, Stanford appeared at a violation hearing and admitted

the charged acts. Upon that admission the judge found a violation and stated he

was inclined to impose a sentence of 24 months imprisonment. The judge

acknowledged the guidelines policy statement recommended imprisonment of 6 to

12 months but determined a longer sentence was warranted:

      I am finding that a sentence outside that policy range is warranted,
      based upon your history of noncompliance, your failure to make
      yourself available for supervision, and your recent criminal conduct,
      and having read the report and the circumstances of your having been
      arrested and using, apparently, the identification of someone else.
      Being in the presence of known gang members, that’s also a source
      of concern to me.

(R. Vol. II at 6-7.) Defense counsel did not object to the proposed sentence.

Stanford said: “You said something about me being around gang members before

I got arrested. I wasn’t around any gang members. I don’t be involved with gang

members.” (Id. at 10.) The judge asked Stanford whether he was with Dewaun

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Stanford and Leroy Dye when he was stopped by the police on September 16,

2008. Stanford responded “Yes, sir” and the judge explained both of those

individuals are known by the Wichita Police Department to be gang members.

The court sentenced Stanford to 24 months imprisonment.

                                     II. DISCUSSION

      Stanford claims the judge erred in considering the Wichita Police

Department’s gang affiliation list in arriving at his sentence. He claims he

received “no notice that the Court was going to consider alleged gang

membership” and argues “[t]his Court should require some predicate proof of

gang membership before the evidence can be used against a defendant.”

(Appellant’s Br. at 4.)

      “Under 18 U.S.C. § 3583(e)(3), when a person violates a condition of his or

her supervised release, the district court may revoke the term of supervised

release and impose prison time.” United States v. Kelley, 

, 1304

(10th Cir. 2004). Before imposing such prison time, a district court is required to

consider the factors provided in 18 U.S.C. § 3553(a) 1 and the policy statements in

      1
          The § 3553(a) factors a court is required to consider include:

      1) the nature and circumstances of the offense, 2) the history and
      characteristics of the defendant, 3) the need for the sentence to afford
      adequate deterrence to criminal conduct, 4) the need to protect the public
      from further crimes of the defendant, 5) the need to provide the defendant
      with needed training, medical care, or correctional treatment, and 6) the
      sentencing range established under the sentencing guidelines or the policy
      statements applicable to a violation of supervised release.

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Chapter 7 of the guidelines, which “are advisory rather than mandatory in nature.”

(quotations omitted). “Because there is no applicable sentencing

guideline for the sentence to be imposed after a violation of supervised release,

our standard of review is plainly unreasonable.” 

(quotations omitted).

“[A] sentence in excess of that recommended by the Chapter 7 policy statements

will be upheld if it can be determined from the record to have been reasoned and

reasonable.” United States v. Cordova, 

, 1188 (10th Cir. 2006)

(quotations omitted).

      In determining whether a post-revocation sentence is both “reasoned and

reasonable,” we generally “review the district court’s findings of fact for clear

error and its legal interpretations of the Sentencing Guidelines de novo.” 

. However, since Stanford did not challenge the district court’s

reliance on the gang affiliation list at sentencing, our review is for plain error.

See United States v. Romero, 

, 1178 (10th Cir. 2007); see also

(applying plain error review to a sentencing argument

challenging the revocation of a term of supervised release). “We find plain error

only when there is (1) error, (2) that is plain, (3) which affects substantial rights,

and (4) which seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” 

.

      We perceive no error here. While Stanford was not specifically alleged to

.

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have violated the terms of his supervised release by affiliating with gang

members, he admitted to being with individuals who were listed as known gang

members—Dewaun Stanford and Leroy Dye—at the time of his arrest. If

Stanford or his counsel had challenged Dewaun Stanford’s and Leroy Dye’s gang

membership at sentencing, the judge would have been required to resolve the

factual dispute. See Fed. R. Crim. P. 32(i)(3)(B) (“At sentencing, the court [ ]

must—for any disputed portion of the presentence report or other controverted

matter—rule on the dispute or determine that a ruling is unnecessary either

because the matter will not affect sentencing, or because the court will not

consider the matter in sentencing . . . . ”). However, the court is not required to

resolve a factual dispute of which it is unaware. See United States v. Wolfe, 

, 1299 (10th Cir. 2006) (“[R]equiring a defendant to challenge any

factual inaccuracies in the PSR before or during sentencing permits the district

court to address those objections at a time and place when the district court is

able to resolve those challenges.”).

      Even if we concluded Stanford’s statement at sentencing that he was not

with gang members at the time of his arrest was sufficient to trigger the court’s

factfinding obligation, we would not remand for resentencing because Stanford

has not shown the court’s consideration of the gang affiliation list affected his

substantial rights. “In order to demonstrate that an error affected his substantial

rights, a defendant must show a reasonable probability that the defects in his

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sentencing altered the result of the proceedings.” United States v. Serrata, 

, 917 (10th Cir. 2005) (quotations omitted). Stanford has not made this

showing. He does not challenge Dewaun Stanford’s and Leroy Dye’s gang

membership on appeal. Moreover, it is clear from the record the judge would

have imposed the same sentence even if he had not considered the fact Stanford

was in the presence of known gang members at the time of his arrest. The judge

explained to Stanford:

      I have sympathy for people who have drug problems, but I am also
      looking for people who, when they screw up . . . how you react to
      that . . . . And you ran away again. And you were gone for months .
      . . . [I]f you had turned yourself in any time between the end of
      March and having to be picked up . . . in September,
      maybe—maybe— . . . I might have been a little more willing to take
      another shot. But I thought I made it perfectly clear to you at the
      least hearing . . . . If you mess up again, you’re going back. That
      was your last chance, and you had it. And nobody blew it, except
      you.

(R. Vol. II at 11-12.) Though the judge made passing reference to the gang

affiliation list, it was clearly not the sole—or even primary—basis for the

sentence. The record reveals the court was mindful of the relevant sentencing

consideration, properly treated the Chapter 7 policy statements in an advisory

rather than mandatory fashion, and imposed a reasoned and reasonable sentence.

      AFFIRMED.

                                       Entered by the Court:

                                       Terrence L. O’Brien
                                       United States Circuit Judge

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